论家庭共有

发布时间：2018-03-23 17:29

本文选题：家庭　切入点：共同共有　出处：《中国社会科学院研究生院》2015年硕士论文

【摘要】：家庭共有是指全部或部分家庭成员在家庭关系存续期间,按照法定或约定,将共有财产或个人财产用于家庭而产生的共同共有法律关系。基于类似的经济社会背景,我国传统社会家族成员对族产的所有与日耳曼法中团体成员对团体财产的总有类似,家庭成员对去世家属所创造的财产的所有与日耳曼法中共同态成员对共同态财产的合有类似。由我国传统家产制演变而来的家庭共有虽然会随着联合家庭的减少而逐渐式微,但短期内不会消失,重视家庭共有的研究和确立家庭共有制度仍有必要。家庭共有的产生需满足存在家庭关系和共同共有关系两个条件。在确定家庭共有主体即家庭共有人时,除需家庭成员对家庭共有财产的形成作出贡献,还应有成为家庭共有人的意愿以及其他家庭共有人的认可。一般情况下,没有完全民事行为能力的未成年人、精神病人不能成为家庭共有人。在确定家庭共有的客体即家庭共有财产的范围时,可依据来源、性质进行确定。在家庭共有的内部关系上,除另有约定,家庭共有人对家庭共有财产的占有、使用、收益应在符合家庭共同生产、生活需要的基础上争取一致、共同行使;对家庭共有财产的保存、简易修缮,都有权或有义务进行;对家庭共有财产的处分及重大修缮必须获得所有家庭共有人的一致同意;共同承担因家庭共有财产而产生的费用及负担。在外部关系上,家庭共有人承担连带债权和连带债务。家庭共有可因为分家、离婚、家庭共有人的死亡等原因而消灭,从而引起家庭共有财产的分割。家庭共有财产的分割分为传统方式和现代方式。对于传统的分家析产方式,我们应传承其有益成分,摒弃其落后部分。现代化的分割方式有协议分割和裁判分割。裁判分割应坚持兼顾利益和公平的原则,分割方法有直接分割、作价分割和变价分割三种。我国未在立法中确立家庭共有制度的原因在于:清末法律移植的不足,对家庭共有制度的重视程度不够以及不完善的家庭财产制度。本文建议从家庭财产制度和共同共有制度两个方向确立和完善家庭共有制度。
[Abstract]:Family ownership means a joint legal relationship arising from the use of joint property or personal property by all or part of a family member in accordance with law or agreement for the duration of a family relationship... based on a similar economic and social background, In our traditional society, all of the family members to the clan property are always similar to the group members of the Germanic law on the group property. All the property created by a family member of a deceased family is similar to that of a common member in the Germanic method. The family common ownership that evolved from the traditional family property system in our country will gradually decline with the decline of the joint family. However, it will not disappear in the short term. It is still necessary to attach importance to the research of family ownership and to establish the system of family sharing. The emergence of family common needs to satisfy two conditions: the existence of family relationship and the existence of common common relationship. In determining the common subject of the family, that is, the common owner of the family, In addition to the contribution of family members to the formation of common family property, there should also be the will to be a joint family member and the recognition of other family co-owners... in general, minors who do not have full civil capacity, In determining the scope of the common object of the family, that is, the common property of the family, the mental patient may make a determination on the basis of the source and nature. In the internal relations of the common family, unless otherwise agreed, The common owner of the family shall strive for consistency and joint exercise on the basis of the joint production and living needs of the family on the basis of the possession and use of the common property of the family, and shall have the right or obligation to carry out the preservation and simple repair of the common property of the family; The disposition and major renovation of the common family property must be agreed upon by all the family owners; the expenses and burdens arising from the joint family property shall be borne jointly. The joint and several creditor's rights and the joint and several liabilities shall be borne by the joint family owner. The joint household ownership may be eliminated because of the separation, divorce, death of the family co-owner, etc. As a result, the division of common family property can be divided into traditional and modern ways. As for the traditional separation of family property, we should inherit its beneficial elements. The modern way of segmentation is divided by agreement and judgment. The principle of taking into account interests and fairness should be adhered to in the division of referee. The method of segmentation has direct segmentation. The reason why our country did not establish the common family system in the legislation lies in: the shortage of law transplantation in the late Qing Dynasty. This paper suggests to establish and perfect the family property system from the two directions of family property system and common common ownership system.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

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